1. Usus modernus and natural law
All in all, therefore, the actio iniuriarum, though considerably modified, is alive and well in South Africa and still forms one of the two pillars of delictual liability at large.
The same cannot be said of Germany, where the development took quite a different course. During the days of the usus modernus pandectarum, the action for iniuria enjoyed great popularity and tended to be brought as frequently and indiscriminately as in Holland.266 "... qua frequentius fere hodie delictum est nullum"267 is the phrase with which Lauterbach introduces his discussion of iniuria. The rulers of the various kingdoms and principalities traditionally tended to be favourably disposed towards the poena iniuriarum. Specific statutes were issued dealing with the matter;268 after all, the imposition of a penalty (no matter whether by way of actio civilis or persecutio criminalis) was a rather more salutary alternative to duelling as a way of reacting to insults.269 The natural [5661] [5662] lawyers, if anything, even extended the protection of honour, dignity and fama; abandoning the notion of a separate action with its own specific requirements, they dealt with the problem of contumely iniuria as an integral pail of their general law of delict.[5663] Fault, said Grotius,[5664] creates the obligation to make good the damage that has been inflicted. Damage, in turn, means that someone has less than belongs to him.[5665] But what belongs to man? On the one hand, what he is entitled to "accedente facto humano", as for instance, by means of ownership, contract or law. On the other hand, and more importantly, however, he is also entitled to that which accrues to him from the law of nature alone;[5666] and by nature not only man's life, body, limbs and the acts of his will are his own, but also his reputation and honour.[5667] [5668] In essence, that meant liability for defamation based on negligence.275 But how can reputation and honour be damaged and how can such damage be repaired? Grotius answered that damage may be inflicted by blows, insults, abuse, calumny, ridicule and other similar means.[5669] 6 Damni reparatio is made "culpae confessione, exhibitione honoris, testimonio innocentiae et quae his sunilia sunt" (this is the amende honorable), and also, if the injured party so wishes, by payment of a sum of money, "quia pecunia communis est rerum utilium mensura"[5670] (the so-called amende profitable). Clearly to be distinguished from this obligation to make good the damage is the further obligation to suffer punishment; the latter is purely a matter of criminal law, for, as Grotius explains elsewhere, "het recht om te straffen komt toe de overheden".[5671] The later natural lawyers (especially Pufendorf, Thomasius and Wolff) elaborated on the idea of natural rights, innate to man and based on his natural freedom. More particularly, they advocated everyone's right to develop his own personality freely and without undue interference by others."[5672] Part and parcel of these all-embracing "personality rights" were the rights of honour, dignity and reputation.
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- The school of natural law
- The Sceptic as Natural Law Adherent?
- The School of Natural Law
- THE MATURE NATURAL LAW
- The notion of an implied condition (natural law)
- 5.11 Juristenrecht and relative natural law
- CIVIL LAW AND NATURAL LAW
- USUS HODIERNUS